Branch v. Wilmington & Weldon Railroad
88 N.C. 570
N.C.
1883
Check Treatment
Ashe, J.

The action cannot be sustained. The plaintiffs have mistaken their remedy. It was the duty of the defendant to ship the cotton when delivered, and their failure to do so gave the plaintiffs a right of action for such damages as they may have *572 sustained by reason of the delay; or they may have maintained an action under the act of 1879, ch. 182, which makes it the duty of all railroad companies to receive all freights tendered for transportation and forward them, under a penalty of fifty dollars upon failure to do so.

This action is brought under the act of 1874 — ’75, ch. 240, § 2, which makes it unlawful for any railroad company operating in this state to allow any freight it may receive for shipment to remain unshipped for more than five days, unless otherwise agreed between the railroad company and the shipper, under a penalty of twenty-five dollars for each day said freight remains unshipped. This act gives the penalty for allowing freight, when received, to remain unshipped for the time specified therein, and the act of 1879 gives it for not receiving freight, when tendered.

The act of 1874-75 has been construed by this court in the late case of Keeter v. R. R. Co., 86 N. C., 346, in which the case of Branch v. R. R. Co., 77 N. C., 347, was cited with approval. In the former case the cotton was received for transportation on the 24th day of December, 1880, and was not shipped until the 30th of the same month; and it was held, upon the authority of the latter case, that the defendant company had not incurred the penalty prescribed by the statute, for that the words “ five days” meant five full running days, exclusive of the day of delivery and the day of shipment — the law not taking notice of the fractions of a day.

Here, the cotton was tendered on the 3d day of November, but not received until the next day, the fourth, and was permitted to remain unshipped until the tenth of the same month. Excluding, then, the fourth and the tenth days from the computation, and there were just five days intervening, and for not shipping within these days there was no violation of the act.

There is no error. The judgment of the superior court is affirmed.

No error. Affirmed.